Brexit Trap Set: But Who is the Trapee?


Nearly every Brexit headline in recent tout the mistakes of Boris Johnson and how he now trapped into stopping no deal.

I strongly disagree with that synopsis.

Johnson has a number of options at his disposal, some of them truly bizarre. It's the bizarre ones that have gathered the most attention.

Let's discuss all of Johnson's options along with Remainer options to circumvent them.

First let's discuss the Benn Bill and how it allegedly ties Boris Johnson's hands. That link shows the actual bill in Tweet form.

Benn's Own Synopsis

What Benn Says his bill does is easier to understand.

The politician said:“The purpose of the Bill is to ensure that the UK does not leave the European Union on the 31 October without an agreement, unless Parliament consents.

“The Bill gives the Government time either to reach a new agreement with the European Union at the European Council meeting next month or to seek Parliament’s specific consent to leave the EU without a deal.

“If neither of these two conditions have been met, however, by 19th October – ie the day after the European Council meeting concludes – then the Prime Minister must send a letter to the president of the European Council requesting an Article 50 extension until 31 January 2020.”

Mr Benn added: “If the European Council agrees to an extension to the 31 January 2020, then the Prime Minister must immediately accept that extension.

“If the European Council proposes an extension to a different date then the Prime Minister must accept that extension within two days, unless the House of Commons rejects it.”

Date Discussion

The October 19 is a Saturday. Perhaps Commons agrees to meet Sunday the 20th.

If not, October 21.

Either way, the date is well within the 14-day window in which Parliament's hands may be tied.

14 days pertains to the timeframe and options given to a prime minister losing a motion of no confidence.

Benn Bill is Illegal - Challenge on Monday?

The Benn Bill passed the House of Lords on Thursday and a Legal Challenge May Come Monday.

The bill is clearly illegal. I discussed the legal reasons above, in detail

In short, the Bill is illegal because it strips the government of its legal rights to conduct international negotiations.

The Bill passed the House of Commons because Speaker John Bercow ruled the Bill did not require "Queen's Consent".

Undoubtedly, the Bill does require Queen's consent.

Thus, Johnson may pursue a legal challenge. But when?

Weird Turn of Events

On Thursday, September 5, I reported Another Weird Brexit Turn.

Out of the blue, after filibustering for hours, the government Whips not only halted their own filibuster but also instructed Tories to vote for the Benn Bill.

Johnson may have set a date trap.

"Never Request an Extension"

  • Boris Johnson has stated he will "never request an extension".
  • He also stated "I'd rather be dead than ask for a delay".

I suspect both statements are a lie especially the second.

Boris Johnson's Nine Options

  1. Resign.
  2. Commit Suicide.
  3. Submit Legislation Requesting an Immediate Election.
  4. Hold a Motion of No Confidence Against Himself.
  5. Mount a Legal Challenge Against the Benn Bill.
  6. Allow Royal Assent but Refuse to Comply With the Law.
  7. Allow Royal Assent, Request an Extension but Somehow Block It
  8. Ask the Queen for a Delay to Study the Legality of Benn.
  9. Allow Royal Assent, Request an Extension

I believe that covers all the bases.

1-Resign: This is possible but only inside a 14-day window before the Brexit legal default day of October 31. However, it is extremely unlikely as it gives up all control.

2-Commit Suicide: No Realistic Chance.

3-Submit Legislation: No Chance. This would only require 50% of Parliament to agree. But any legislation Johnson submits would be amendable with likely dire consequences.

4-Hold a Motion of No Confidence Against Himself: This is possible but only inside a 14-day window before the Brexit legal default day of October 31.

5-Mount a Legal Challenge : A "Queen's Consent" legal challenge is possible. But when? Note that "Queen's Consent" and "Royal Assent" are not the same thing. For details and discussion, please see Legal Challenge May Come Monday.

6-Allow Royal Assent but Refuse to Comply: Under this scenario Johnson simply refuses to honor the Bill.

7-Allow Royal Assent, Request an Extension but Somehow Block It: Under this scenario Johnson provides "Royal Assent" and the bill become law. This is possible, and perhaps the most likely scenario as further discussed below.

8-Ask the Queen for a Delay to Study the Legality of Benn. The purpose of this move would be to kill time and add uncertainty. Johnson would have the leisure of going along on October 14 or perhaps then asking the Queen to let the courts decide.

9-Allow Royal Assent and Honor the Extension Request: No Chance

Five Primary Options

The primary options are 4-8. Option 4 would likely occur as a result of number 6. Option 8 would morph into something else, adding uncertainty.

Let's discuss the five most likely options.

Discussion: 6-Allow Royal Assent but Refuse to Comply

Under this scenario Johnson allows the Benn Bill to become law. He could then perhaps make a legal after-the-fact claim that Commons violated procedure to get the law passed and thus passage of the law was illegal.

Option 5 (a legal challenge) within option 6 strikes me as odd because the law will already have passed. But perhaps Johnson could mount a claim he was illegally obliged to vote against the government and thus passage itself was illegal. Curiously, Johnson might select this path even knowing it is doomed, simply to buy needed time.

Alternatively, Johnson could refuse to comply then use that as the basis to file a motion of No Confidence against himself or resign. A motion of no confidence under these any refuse-to-comply scenario would surely pass. But it takes a day of debate and then a vote.

Resignation in a refuse-to-comply scenario would allow the opposition to immediately come up with an alternate candidate caretaker government. The caretaker would in turn immediately request an extension and perhaps do other damaging things. This is why I rule out resignation.

Assume the Commons outs Johnson. They vote for a caretaker government. The law is unclear as to what happens if Johnson refuses to resign.

Johnson's options may be limited and circumvented but so might Parliamentary options once we get inside the 14-day window.

We do not know what other tricks or traps may be in place by either side.

Discussion: 4-Hold a Motion of No Confidence Against Himself

If Johnson selects this option, it would most likely be in conjunction with option 6 discussed above.

It's possible, perhaps as a final act of desperation.

Discussion: 5-Mount a Legal Challenge Against the Benn Bill

This may happen Monday or after option 6 discussed above.

I strongly believe a legal challenge would win, but that could give Parliament a huge incentive to to oust Johnson sooner rather than later.

If Johnson does not mount a legal challenge on Monday, it will be on purpose, not because a challenge would lose.

Thus, Johnson may allow the bill to become law without challenge, knowing full well that it is illegal. I am unsure if that completely rules out a legal challenge later. Who really knows how the courts might decide?

Perhaps Johnson understands he could not realistically mount a legal challenge after the bill received Royal Assent, but goes ahead anyway. That tactic would kill some perhaps crucial days as the case proceeded through the courts, no doubt fast-tracked.

Issuing a legal challenge even at a late state is more likely than refusing to comply with the law without offering a reason.

7-Allow Royal Assent, Request an Extension but Somehow Block It

Sorting through the options, this could easily be Johnson's best bet.

What might he do?

Get a commitment from France or Hungary to block the extension request. Yet, it's risky because France and Hungary might lie.

Even if Johnson put in place a poison pill, the EU might all go along knowing full well that Parliament would then elect a caretaker government and pass emergency legislation.

Neither side one can be trusted here.

A trap may have been set for Johnson. But we do not know what other tricks may be up Johnson's sleeve. There are potential traps both ways.

I have an idea but will not write it up here as I do not want it to be public. Instead, I will pass it on to Nigel Farage hoping he will listen.

Discussion: 8-Ask the Queen for a Delay to Study the Legality of Benn

A delay chews chews up time and adds uncertainty. Instead of asking the Queen to rule, Johnson asks for time.

Then on October 14, Johnson could grant assent, advise the Queen the bill is illegal, or ask the queen to allow the courts to decide.

Eventually, option 8 would morph into 4, 5, 6, or 7. It also kills a lot of time.

Who is the Trapee?

Parliament is suspended by order of the Queen from the end of the session on Monday, September 9 until October 14.

That suspension is iron-clad having already survived multiple court challenges.

Given the options discussed above, I caution against premature conclusions no matter what "apparently" happens on September 9.

Do not despair if Johnson fails to file a "Queen's Consent" legal challenge. It will be for a reason.

This is a very complicated mess right now.

Mike "Mish" Shedlock

Comments (42)
No. 1-16

Re #2, it's just Brexit, no life is worth it, the rest of the list is just nuts...


Amber Rudd MP PC Secretary for Work and Pensions resigned today citing that the liar is not negotiating with the EU. The liars majority is now minus 43. The Sunday Times, who broke the Rudd story, suggest that there are several other cabinet ministers who agree with Rudd. There is one more possibility that you do not mention. That the liar's administration just collapses, like a horse in the traces that cannot go on. This has happened three times in the last 115 years. 1905, 1940 and 1974. It also happened in the 19th century on several occasions. I'd put money on the liar just walking away.


From the Benn quote on his bill: “If the European Council proposes an extension to a different date then the Prime Minister must accept that extension within two days, unless the House of Commons rejects it.”

This seems designed to to make it hard for Parliament to reject whatever the European Council proposes. It's well known that the EU wants--and could well propose-- a much longer extension in order to negotiate a new deal without May's red lines, e.g.18-24 months. With such an extension, it might be very difficult for Johnson to make an alliance with the Brexit Party in the next election, unless the latter softens their "no deal" position.

Therefore, if Johnson is serious about delivering on his pledge to Brexit Oct. 31 "no ifs or buts", it's now or never. My money is on Option #8, or something like it, because Berclow's usurpation of royal prerogative probably can't be upheld legally or even politically. He seemed to have pulled a fast one.

How about this option: "Queen denies consent."


I doubt the bill becomes law on Monday- I think Johnson will delay one way or another, and the Parliament will end on the 10th until Oct 14th killing the Benn bill for this session- Johnson won't even have to file a court case nor "study" the matter.

With that, Parliament will have nothing it can do until after the 14th of October. Then, I suppose the Remainers will face a stark choice- either try again with the Benn bill, starting from scratch and hope Johnson has no delaying tactics to use running out the clock; or do a VONC and replace Johnson before the 31st.

What I don't think you will see is Johnson acceding to the bill on Monday then disobeying it. I think Johnson has to force the opposition to do a VONC and then try to form a government after the14th- that is the only way the Remainers can ensure that the UK doesn't leave without a deal.


There was an election...but the left didn't like the outcome.

So they have spent the last three years trying to overturn the election. By any means possible. Even it means ripping the country apart and destroying the bedrock foundations of their society.

Hmmmm...could be talking America or Britian...


I'm Canadian, but I've been following Brexit very closely, I like Boris Johnson, and hopes he prevails. However, I think there's some wishful thinking on the part of some of his boosters.

The latest option his team has apparently floated out there is to threaten to not nominate a European commissioner, thus paralyzing the commission itself. It just seems to be one big swing after another.

I think Johnson underestimated the eventual strength of the Tory rebellion. But, probably more importantly, he failed to anticipate Jeremy Corbyn's refusal of an early election, which leaves Johnson somewhat stranded.

I hope I'm wrong. But I think Brexit and Johnson supporters are hoping he has a trick or two still up his sleeve in the hope he hasn't been snookered. I'm not so sure anymore, but we'll see.


The language of the Benn bill requires Johnson to "send" an extension request to the EU by October 19, but it doesn't at all stipulate that it has to get there by then. He could entrust it to an advisor who walks it to Belgium. And if it doesn't get there by 31 law broken.


I just thought of this. Maybe Johnson believes just the threat of ignoring the delay-Brexit bill is enough for the EU to believe a no-deal is still on the table, thereby pressuring them into a deal. Although it might be a bluff they're willing to call, or they're more willing to actually go through with a no-deal than doubters believe.


It is now early morning in UK so only just read this. A couple of points to add to Mish's article.

  1. Boris was with Queen at Balmoral on Friday pm with his girlfriend. He even had a sleepover! This was a longstanding engagement with dates booked before Boris became PM. Traditionally, PM sketches out plans for the future at these discussions. Who knows what may or may not have been chatted about over dinner?
  2. Actual start date of Prorogation has still to be confirmed, IIRC, but must be between Sep 9h and 12th. If Royal Assent delayed due to technicality or legal then Bill can collapse on Prorogation! This might be government plan. Let Queen query why no Queen's Consent, Prorogue whilst query being resolved then cancel Benn. But who knows what might happen? Also unconfirmed reports that PM's chief advisor, Dominic Cummings, has told his team Benn Bill would not stand up in Court if Boris arrested but no reasons given.

Interesting live interview on UK tv on Sunday morning with UK Chancellor (Sajid Javid). He confirmed PM and government would NOT break the law. He also confirmed that Boris will attend EU summit on Oct 17th/18th but will NOT ask for an extension. Questioned further, he clarified that Benn Bill (he did not refer to it as the Law) requires PM to do things by 19th Oct. The fact he might not have done those things by 18th Oct would NOT be breaking the Law. He finally added that what happens on 19th October will be known on that day. Whilst careful with his words he was extremely confident in his delivery.


France is definitely not to be trusted for a veto of a Brexit extension by the EU. Hungary can be trusted since they are trying to assert their sovereignty. Poland is another country trying to defend its sovereignty against the EU. Poland also has one of the best relationships with the US. Italy and Greece are effectively dependent upon EU financing to bite the hand that prints money for them.


I doubt that any of this matters in the longer term. The EU is in the last phase of its existence and whatever happens here is prologue. BoJo sould tell the voters that the UK is forced into the delay, which would really piss them off and probably stiffen their spine and then refuse to negotiate any deal but one which is on BoJo's terms. This would cause another delay vote in Parliament but could very well result in the EU kicking the UK out. Problem solved. If there's another delay, negotiations just stall unless BoJo gets what he wants or Parliament votes no confidence at which point there's an election. If the UK is kicked out, the EU gets no exit fee and loses 14% of its operating budget. A tariff battle will ensue but the US is still the largest single trade partner with the UK and that can be expanded "bigly". 


The article avoids the most likely event, although it technically is beyond Ferrthead's control-Corbyn moves no confidence and 14 days later forms a coalition government, per the Tory written Fixed Term Parliament Act.At that point the coalition will easily get an extension and either revoke Article 50, or more likely, hold a referendum based on facts, not Putin/Mercer/Banks fantasies.


This afternoon's rumour is that Boris will facilitate Royal Assent on Benn Bill and it will become law tomorrow. He will then press for another election. If he wins that vote then election on 15th October and he Prorogue quickly. If he loses election request (likely) he will Prorogue immediately. Whilst a Bill is passing through Parliament the Speaker's word is final (even if wrong). The moment it becomes law Parliament and the Speaker have no say or further control of it. The application and interpretation of the law passes to the judges. They take no account of what was intended by the law ut only consider the written words and the way it was created. Boris cannot challenge the decisions on Queen's Consent etc until it becomes law. Then he can challenge its validity in the courts in advance of it being needed. This is called a Judicial Review. The rumour is "Get Benn Bill passed into law, Prorogue Parliament, challenge Law in High Court then possibly Supreme Court. Could all be sorted before Oct 15th. If Supreme Court rules the law is good and sound then Boris has a problem. If Supreme Court rules the law is flawed then it will cease to apply and he can ignore it. Mish's articles about Queen's Consent give a good indication of line of attack but there could be others. This would also explain sudden change of plan in the Lords with the filibuster.


Boris has the ability to call an election himself. Under the civil contingencies act 2004, the PM has the power to suspend any law for 30 days in the event of an emergency. Boris could challenge the legitimacy of Benn's law, then declare the whole issue an emergency (Corbyn has already said so himself). Invoke civil contingencies, and suspend the fixed term election law. With that law suspended, the PM can legally call an election and "take it to the people" using his prerogative powers.


Brexit preoccupation seems to have priority over economic opinion here.

There is also the possibility that the EU is sick of UK Parliamentary nonsense and failure of any substantive proposals and announces in advance that there will be no delay without proposals.

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